Reynolds v. Federal Bureau of Prisons
Filing
73
MEMORANDUM AND ORDER, The Court ADOPTS the Report in its entirety (Doc. 65 ); OVERRULES Reynolds's objections (Doc. 70 ); GRANTS the defendants' motion (Doc. 52 ); DISMISSES Count 2 without prejudice for failure to exhaust administrative remedies; and DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case. Signed by Judge J. Phil Gilbert on 3/21/2017. (jdh)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENYON G. REYNOLDS,
Plaintiff,
v.
Case No. 15-cv-262-JPG-DGW
UNITED STATES OF AMERICA, PHILIP
DELANEY, STEPHANIE HALL and DOES
1-50,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 65) of
Magistrate Judge Donald G. Wilkerson recommending that the Court grant the summary judgment
motion filed by defendants United States of America and Stephanie Hall (Doc. 52) and dismiss Count 2
for failure to exhaust administrative remedies. Count 2 is a Bivens claim for failure to protect in
violation of the Eighth Amendment. Plaintiff Kenyon G. Reynolds has objected to the Report (Doc.
70), and the defendants have responded to that objection (Doc. 71).
The Court may accept, reject or modify, in whole or in part, the findings or recommendations of
the magistrate judge in a report and recommendation. Fed. R. Civ. P. 72(b)(3). The Court must review
de novo the portions of the report to which objections are made. Id. “If no objection or only partial
objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson v.
Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
This matter arose while Reynolds was housed at the United States Penitentiary at Marion, Illinois
(“USP-Marion”). On September 4, 2013, he was assaulted by another inmate and severely injured. In
Count 2, he alleges that Hall, a USP-Marion employee, failed to protect him from a known risk of assault
by “haters” of convicted sex offenders like Reynolds. Reynolds filed this lawsuit on March 9, 2015.
The defendants claim Reynolds did not exhaust his administrative remedies before filing his Bivens
claim as required by 42 U.S.C. § 1997e(a).
Magistrate Judge Wilkerson held a hearing on the matter on February 2, 2017, pursuant to Pavey
v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). He found that Reynolds had tried to resolve the matter
informally with prison staff by submitting a BP-8 form to a counselor and then submitted a formal
administrative remedy request on a BP-9 form to the warden; responses were made to both forms, but it
is unclear whether Reynolds actually received the response to the BP-9. Reynolds did not pursue
further institutional appeals by submitting a BP-10 (appeal to the Regional Director) and BP-11 (appeal
to the General Counsel).
Reynolds claims that further administrative remedies were not available to him. He claims that,
as a result of the assault, his memory was affected such that he did not have the ability to pursue his
grievance to the highest level. Magistrate Judge Wilkerson noted that medical evidence from after the
assault did not indicate any memory problems and that Reynolds demonstrated an ability to recall and set
forth details in his BP-8 and another post-assault administrative claim. Based on this evidence,
Magistrate Judge Wilkerson found that Reynolds was not credible as to memory problems. He also
found that Reynolds was able to read, had been told about and had been issued a handbook containing
information about the appeal procedure, had assistance available to him, and was therefore able to
exhaust his administrative remedies.
Magistrate Judge Wilkerson also noted that whether Reynolds actually received a response to his
BP-9 is immaterial. Even if he did not receive a response, under 28 C.F.R. § 542.181, the administrative
remedy would be deemed denied after 20 days, at which point Reynolds could have appealed that denial
in a BP-10.
In his objection, Reynolds maintains that the administrative remedy procedure beyond the BP-9
That regulation states, “If the inmate does not receive a response within the time allotted for reply,
including extension, the inmate may consider the absence of a response to be a denial at that level.”
2
1
was not available to him – so he did not have to exhaust it – because he received no response to his BP-9.
He notes that the 20-day time period to appeal a BP-9 tees off from “the date the Warden signed the
response,” 28 C.F.R. § 542.15, and there is no signature on a deemed denial. He argues that the
regulations in this regard are unclear and too complicated for a prisoner to be able to understand and
follow.
The Court has reviewed the matter de novo, including the transcript of the Pavey hearing, and
finds that, as Magistrate Judge Wilkerson explained in the Report, the failure to receive a response does
not render further appeals unavailable. A failure to respond in a timely manner to a remedy request is
deemed a denial, which is appealable. While Reynolds’s argument about when the appeals period
began to run might have had some traction in a bid to extend his appeal period for lack of the warden’s
signature, it does not mean he did not have further remedies available to him. Thus, although Reynolds
may not have received a response, his BP-9 was effectively denied, opening further levels of appeal to
him.
For the foregoing reasons, the Court hereby:
ADOPTS the Report in its entirety (Doc. 65);
OVERRULES Reynolds’s objections (Doc. 70);
GRANTS the defendants’ motion (Doc. 52);
DISMISSES Count 2 without prejudice for failure to exhaust administrative remedies; and
DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.
IT IS SO ORDERED.
DATED: March 21, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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